Haleema Sadia vs State of JandK and Others

Mohammad Yaqoob Mir, J.â€"Prosecutrix-petitioner seeks quashment of the orders dated 24th October, 2013 and 25th October, 2013 passed

by the Court of Additional Sessions Judge, Rajouri, whereunder respondent No. 3 in respective petitions have been granted bail. Case has been

registered as Crime No. 476/2013 P/S Rajouri for commission of offences punishable under Section 366, 376 and 109 RPC. Respondent

Mohammad Zubair is alleged to have kidnapped the prosecutrix and thereafter sexually assaulted her against her will whereas respondent Talib

Hussain, co-accused, is stated to have instigated the commission of crime. Investigation of the case has established that the respondent

Mohammad Zubair has committed the offence punishable under Section 366, 376 RPC whereas respondent Talib Hussain to have committed

offence punishable under Section 109 RPC.

Learned Additional Sessions Judge after noticing the peculiar facts and features of the case has exercised discretion in favour of the accused by

admitting them to bail. Dissatisfied therewith, petitioner-prosecutrix has sought quashment of the same by projecting that the exercise of discretion

by learned Additional Sessions Judge in favour of the accused amounts to abuse of the process of law.

Learned counsel for the petitioner would contend that the offence committed is against the society. Such type of criminals are not to be shown

any type of leniency. Keeping in view the gravity and seriousness of the offence, which has the effect of shaking conscience of the society, the

Court was required to be loath in exercising discretion in favour of the accused.

No doubt, concern of the learned counsel for the petitioner as projected and highlighted is attractive. When an offence is serious having been

committed against the society, such type of criminals or perpetrators of crime if released shall be hazardous to the social environment.

Heinousness of the crime has to be ascertained from the particular fact situation of a particular case. It is in the same background, learned

Additional Sessions Judge was satisfied that the heinousness of the offence is not such which would persuade the court not to exercise discretion in

favour of the accused persons. Learned Additional Sessions Judge has noticed in his order that the prosecutrix being major is claimed to have

wilfully contracted marriage with the accused Zubair. In support whereof, photocopies of the marriage agreement and Nikah Nama were placed

on records. It is also noticed that as per allegations levelled, prosecutrix after having been allegedly kidnapped from the house of her aunt was

taken to different places, first to Rehan, to Bakori, to Shopian, to Srinagar and lastly from Srinagar to Jammu, as such, trial court has noticed that

the allegation of kidnapping in such circumstances gets mitigated so as to dilute the alleged heinousness of the crime.

Learned counsel for the petitioner would submit that, in fact, petitioner was already married to someone else, therefore, there could be no scope

for her to contract another marriage. All documents are nothing but concoction. Since documents have been placed on record, those are required

to be disproved by the petitioner which is a matter of trial. In addition thereto, on conclusion of investigation, charge sheet (challan) has been

presented before the competent court wherein accused are shown to have committed offence punishable under Section 366,376 and 109 RPC.

No case till date appear to have been registered or complained vis-Ã -vis commission any other offence.

The power exercisable under Section 561-A Cr.P.C. is exceptional. Time and again it has been settled that such power is to be sparingly

exercised so as to avoid abuse of process of the court or to avoid miscarriage of justice.

In the stated facts of the case, no case is made out which would persuade the Court to exercise power under Section 561-A Cr.P.C., both the

petitions, as such, are dismissed. Dismissal of these petitions will not preclude the petitioner in seeking cancellation of bail as has been granted in

favour of the accused in case they thwart the process of law or violate the concession as has been granted. In case any such motion is laid, same

shall be decided by the learned trial court on its own merits, notwithstanding the observations made hereinabove. Copy of the order be sent to the

trial court for information.